MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 2008-10

Ethical Requirements Pertaining to Targeted mail Advertising

You have requested an opinion of this committee related to Lawyer Advertising and Targeted Mail.

You indicate that “most of (your) questions have been prompted by Lawyer advertisements that (you) have observed.” Your eight questions, with sub-parts added, may relate to a total of 19 questions that you have about content you maintain that you have observed in lawyer advertising by other lawyers. In a phone conversation with a member of our committee, you advised that you were sending in more questions to the chairman of our committee.

After setting forth your original list of questions, you express your hope that our answers can establish what are the “permissible boundaries” or limitations imposed by the Maryland Rules of Professional Conduct (the “MRPC”). In your letter, none of the advertising content situations that you list are indicated as something you desire to include in your own advertising.

Given the nature and scope of your inquiry, it seems that what you seek from this committee is a dissertation or article on lawyer advertising in the modern age. Expounding at length on the propriety of each of the 19 or more separate situations that you observed and listed for us in your inquiry is beyond the scope of this committee’s role in rendering advisory opinions.

It is unclear from your written inquiry whether: (a) you have a concern that other attorneys may be violating the MRPC relating to advertising, (b) you are distressed at the extent to which other lawyers promote their practices with reference to magazine endorsements as “Best”, “Top” etc. (c) you have a curiosity as to the boundaries of permissible lawyer advertising in general, or (d) you intend to undertake an advertising effort to promote your law practice and you want to know the restrictions to which you must adhere under the MRPC.

It is apparent that the advertising examples which you listed as things you have observed, and on which you want our opinion, are a result of actions which have already occurred; things which, as you maintain, are “out there” and in practice by other attorneys. Such things are referred to in the guidelines of this committee as “past conduct” and “the conduct of someone other than the person requesting the opinion.”

The Guidelines of this Committee provide in pertinent part as follows:

1. The Committee does not issue opinions on questions of law, . . . or the propriety of past conduct which may be the subject of disciplinary proceedings. . .
2. The Committee does not usually issue opinions regarding the conduct of someone other than the person requesting the opinion, but may do so upon the request of a professional organization or a Court having jurisdiction over the conduct, which is the subject of the request.
3. The Committee does not approve proposed advertising copy, fee agreements, or the text of other legal or law-related documents, but may opine whether such materials contain statements or appear to contemplate transactions, which might violate the Rules.

In the phone conversation with a member of this committee, you inquired as to which body – the Maryland Attorney Grievance Commission or this committee — has the final say on a matter. This committee is not a disciplinary or enforcement authority and our opinions are advisory only. The Maryland Attorney Grievance Commission is not bound by opinions of this committee. The committee has had the occasion to receive inquiries from lawyers seeking guidance on ethics issues when it is the inquirer’s undisclosed plan to use our committee’s opinion to claim that another lawyer has violated the MRPC or use our opinion in defense of an imminent or pending complaint before the Attorney Grievance Commission. It is for that reason that we typically decline to opine on the propriety of past conduct, and especially when it is past conduct by other lawyers whose actions have been “observed” by the inquirer.

Notwithstanding our usual practice, with the foregoing preamble, and rephrasing your question to be: “What can I do in advertising my law practice and remain in compliance with the MRPC?” the Committee will attempt to give you some guidance.

The MRPC which addresses Lawyer advertising in general is Rule 7.2, which states in pertinent part:
Advertising

1. Subject to the requirements of Rules 7.1 and 7.3(b), a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, outdoor, radio or television advertising, or through communications not involving in person contact.

   * * *

1. A lawyer shall not give anything of value to a person for recommending the lawyer’s services, except that a lawyer may
   1.  (1) pay the reasonable cost of advertising or written communication permitted by this Rule;
   2.  (2) pay the usual charges of a legal service plan or a not-for-profit lawyer referral service;

      The MRPC which governs permissible advertising content is Rule 7.1, which states:

Communications Concerning a Lawyer’s Services

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:

1. contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially false or misleading.
2. is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Maryland Lawyers’ Rules of Professional Conduct or other law; or
3. compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.

The MRPC which governs communication of a lawyer’s fields of practice is Rule 7.4, which in pertinent part provides that:
Communication of Fields of Practice

1. A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law, subject to the requirements of Rule 7.1. A lawyer shall not hold himself or herself out publicly as a specialist.

The MRPC which governs letterheads or envelopes is rule 7.5, which in pertinent part states that

 Firm Names and Letterheads

1. A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

Having reviewed the applicable MRPC which relate to lawyer advertising, we turn now to your questions:

Your question #1 concerns Maryland Code, Business and Occupations Article §10-605.2(d) (the “Law”) which deals with a lawyer’s targeted mailings and mandates that each such mailing needs to include the words “This is an advertisement.” The Law specifies that that “required wording” which must appear at the beginning and end of “each communication” which is sent to a prospective client for the purposes of obtaining professional employment. You inquire as to permissible variations or additions to that “required wording,” for example: “This is an advertisement for aggressive legal services” or “This is an advertisement for affordable legal services.” Such variations as you have proposed seem designed to modify the wording required by the Law to add some “spin” to the precisely phrased, mandated wording selected by the legislature and thereby use new wording to convey a message not intended by the Law. The Committee cautions against using such language.

Your question #2 asks if it is permissible to include in advertising literature a client’s testimonial that a lawyer is the “best”, “top” or “premier” when “the client is available to substantiate that opinion.” It is the opinion of this committee that such testimonials, as you describe, which you may be inclined to include in your literature, would be inherently misleading and impermissible without including an adequate explanation as to how such a rating was earned. See the ABA/NBA Lawyers Manual on Professional Conduct, No. 309 April 30, 2008, citing Pennsylvania Ethics Opinions 85-170, 2004-10 and Tennessee Formal Ethics OP. 2004-F-149.

Your Question #3 asks if a lawyer, in his or her advertisement can use those words, “best” etc. used to describe the lawyer when the lawyer is so described in a magazine when the lawyer pays for being so described. A basic question the lawyer must ask before paying for the resulting advertising is: does the magazine qualify as a “legal services plan or a not-for-profit lawyer referral service” as required by Rule 7.2(c) (2)? Ordinarily the inquiry would end there.

While it may be permissible to mention having been described as “Best” or “Top” lawyer in a magazine when that is a fact, (See the ABA/NBA Lawyers Manual on Professional Conduct, No. 309 April 30, 2008, citing Virginia Advertising Op. 1750, and A-0114) paying a magazine to be described therein as “best” or “top” seems hardly a proper way to earn that distinction. Under these circumstances, making the payment would be tantamount to voting for (or endorsing) yourself as being the “best,” merely because you paid money for the privilege. If that is the means by which such a distinction is earned, then an advertisement recounting that a magazine described such a lawyer as “Best” or however the magazine (paid to do so) describes him or her would be misleading and impermissible. Moreover, giving something of value to the magazine to recommend a lawyer’s services would be a direct violation of Rule 7.2 quoted herein unless the payee magazine qualifies under the rule.

Your question #4 asks about permissible graphics such as the Maryland Flag, the Maryland Seal or State Police cars being used on a lawyer’s letterhead or envelope. The question which should be asked is: do graphics of Maryland State flags, State seals and State Police Cars which you would put on your firm envelopes and letterhead suggest a connection between you and the State Government? What connection is intended by including those graphics on a lawyer’s letterhead or mailing envelope? If no connection is intended, one must wonder why would an attorney want to have such images on his communications? This committee has seen correspondence bearing State, or another government agency’s seal, but in all such cases, the correspondence bearing such graphics is from a government agency and not from an attorney seeking employment.

Additionally, under Maryland Code Business and Occupations Article 10-605.2 (h) (5), your communication may not imply that the communication has been approved by the State or any unit of the State. Under the circumstances, we conclude that an attorney’s envelopes and letterhead bearing such graphics (other than US postage stamps) risk being misleading and impermissible. See also the preliminary comments to your next question.

Your question #5 asks if words such as “Traffic Center,” “Traffic Lawyer,” “DWI Lawyer” and “DUI lawyer” can appear on an envelope used in targeted mail advertisements. As a preliminary matter, we point out that this committee is not the one to whom the legislature has directed that copies of target mail advertisements be sent. Under Article 10-605.2 (h) (2) copies of your communications are to be sent to Bar Counsel. What we may opine as permissible or impermissible does not govern the actions or approval of Bar Counsel. That said, referring to Rule 7.4 and 7.5 quoted above, and considering that those words amount to a “Trade Name” of your practice, or otherwise “Communicate” your fields of practice, then any trade name which is accurate, does not hold the lawyer out as a specialist and implies no connection with a government agency, etc. would be permissible.

Your question #6 asks if comments made by a Judge and court officials may be used in lawyer advertisements? We would need to know what the comment is before passing on such a proposition. This committee has previously, in docket 92-9, opined generally that testimonials in lawyer advertising are “ordinarily precluded due to the risk of creating unjustified expectations that similar results can be obtained for others.” A statement by a court official or judge may indicate that the attorney whose work they are endorsing got a $1 million dollar verdict, yet fail to disclose that the attorney had turned down a $2 million offer, or that the judgment-proof defendant neglected to put on any defense.

The substance or content of the planned testimonial is important. It matters not whether the testimonial is by a client or a judge, a lawyer may not violate the MSPR through the acts of another. As for the content, this committee follows the reasoning stated by the Virginia State Bar in Opinion A-0113 where it said:

In further clarification, even statements of opinion by clients that contain comparative statements are not appropriate. This Committee adopts the mixed approach, used in Pennsylvania, while prohibiting testimonials regarding results and/or comparisons; it does allow “soft endorsements.” Philadelphia Ethics Opinion, 91-17; Pennsylvania Bar Association Ethics Opinion 88-142. Examples of “soft endorsements” include statements such as the lawyer always returned phone calls and the attorney always appeared concerned.” Id

 In sum, the requirements for lawyer advertising are all intended for the protection of the public. The restrictions on advertising content are carefully chosen to avoid misleading the public as they make the important choice of whom to select for legal representation. This committee will not erode that protection where non-lawyers or their statements appear in the advertisements. Such a distinction would violate both the language of the pertinent discipline rule and the spirit behind it.

Your question #7 asks if the words “excellent opportunity” can be used when “referring to a result in the case?” Your question is too vague for this committee to understand how those words would be used or how they would describe the results of a case. The best we can say is that whatever words are used must not be false or misleading. See Rule 7.1 referred to above. If you follow those qualifying restrictions, the words should be permissible.

Your question #8 asks if a lawyer can advertise that he or she has an ‘in depth’ understanding of
how (scientific) equipment is used at a trial? Once again, if the words used are not false or misleading, as mandated by rule 7.1, then the words used should be permissible.

No discussion of permissible written lawyer advertisement would be complete without reference to the First Amendment’s guarantee of free speech. In the Maryland case of Unnamed Attorney v. Attorney Grievance Commission 313 Md. 357; 545 A.2d 685 (1988), a case on targeted mailing, the Maryland Court of Appeals noted that:

We interpret Shapero (v Kentucky Bar Association 486 U. S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988)) to mean that written modes of solicitation (as opposed to in-person solicitation) are protected by the First Amendment, regardless of the recipient’s condition, so long as such communication is neither false, misleading, nor overreaching.

See also Bates v. Arizona State Bar 433 U.S. 350, 383 (1977) and State Bar Association of North Dakota Ethics Committee Opinion No. 92-19.

We trust that this is responsive to your inquiry.

REFERENCES:

MSBA Committee on Ethics Guidelines 1-a, 1-b. & 1-c.
MSBA Committee on Ethics Opinion, Docket 92-9

Attorney Grievance Commission v. Ficker, 319 Md. 305, 572 A.2d 501 Md. (1990)
Unnamed Attorney v. Attorney Grievance Commission, 313 Md. 357; 545 A.2d 685 (1988)
Shapero v. Kentucky Bar Association, 486 U. S. 466, 108 S. Ct. 1916, 100 L. Ed. 2d 475 (1988)
Bates v. Arizona State Bar 433 U.S. 350, 383 (1977)

Maryland Rules of Professional Conduct, Rules 7.1, 7.2 (a) & (c) , 7.3, 7.4, 7.5

Maryland Code, Business and Occupations Article §10-605.2(d) (h)(2) and (h)(5)..

ABA/NBA Lawyers Manual on Professional Conduct, No. 309, April 30, 2008
Pennsylvania Ethics Ops. 85-170, 88-142 and 2004-10
Tennessee Formal Ethics Op. 2004-F-149.
Virginia Advertising Ops. 1750, A-0113 and A-0114
North Dakota Ethics Committee Op. No. 92-19.
Philadelphia Ethics Op. 91-17

ASSIGNED TO: WALTER S. B. CHILDS

DATE ASSIGNED: May 5, 2008

DATE DISTRIBUTED: June 6, 2008